Author Name:   Shreya Singh

Sexual harassment at workplace has become one of the blistering issues in India. The heinous way in which a physiotherapy student was raped in a moving bus in the heart of the country makes it more important to concentrate on the safety and security of women anywhere in the country

Justice At Justice Delivery Centre?

Abstract
Sexual harassment at workplace has become one of the blistering issues in India. The heinous way in which a physiotherapy student was raped in a moving bus in the heart of the country makes it more important to concentrate on the safety and security of women anywhere in the country.

This paper elucidates some of the facts related to sexual harassment issues and to a great extent throws light on sexual harassment by judges. The authors have made an effort to highlight the importance of this issue through some recent cases. It also makes some recommendations which need to be taken into account so that the guilty are not left scot-free.

It haunts me, day in, and day out, endlessly,
Like a living nightmare, my mind replays each moment, bit by bit.
You’ve forever changed me..-Stephane The Poet

India has been witnessing a spurt of human rights violation across its territorial boundaries. Sex is a primary tool for oppressing women. Sexual harassment of women is one of several monstrous issues to be addressed in urgency. There have been umpteen cases where women have complained of sexual offenses committed against them by their colleagues and their seniors and the question which comes forth is where should they go to seek the enforcement of their rights? Whom should they look up to for their protection? The Supreme Court of India is the highest judicial body in the country for the enforcement of rights. The people of India expect the highest court in the land to function in an exemplary manner in a way that the spirit of the law is upheld, not just the letter. The point about wider morality is pertinent here.
The world has been ruled by men for years so how can the legal profession be an exception. Since time immemorial this profession too has been male dominated and the women have often been subdued. The profession gives a very neat and graceful impression from outside but only those who are a part of the profession know the actuality. As a student in a law college all what is taught is idealism. Reality dawns on the students when they work as interns or only when they formally enter the legal profession. The two charges of sexual harassment against the retired judges of the Supreme Court have blown the lid off sexual offenses occurring in the profession. These two cases come in the backdrop of the protests against the brutal Delhi gang-rape of a physiotherapy student. The incident propelled one of the diseases India has been seriously diagnosed with- sexual violence to the forefront.

On November 6, 2013 a recent graduate of Kolkata’s National University of Juridical Sciences, alleged that a recently retired Supreme Court judge “old enough to be her grandfather” had sexually harassed her in a hotel room on December 24, 2012. The news exploded like a bomb and the cloud of smoke enveloped the entire country. Against the same backcloth another allegation was made by a woman against a former judge of Supreme Court, Justice Swatantra Kumar. The woman who is also a former student of Kolkata’s National University of Juridical Sciences accused the former SC judge of sexual harassment while she was interning under him in May 2011. The question which crops up for consideration is where should those law interns go for seeking justice? The persons who have been accused of causing grave hurt to the dignity of these women are the protectors of justice. Both of these retired judges are holding prominent offices in the country. Justice Swatantra Kumar is the chairperson of National Green Tribunal and Justice A K Ganguly who was the chairperson of West Bengal Human Rights Commission resigned from his post on January 6, 2014 succumbing to pressure arising all over India.
Harassment is not about flirting or even about sexual intentions, it is an abuse of power. No one asks to be sexually harassed-it’s degrading and often traumatic. The law describes sexual harassment as unwelcome acts or behaviour (directly or by implication) which include physical contact and advances; a demand or request for sexual favours; making sexually coloured remarks; showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

The social stigma a woman faces when she complains of sexual harassment is immense. Suddenly, her attire, behaviour and interpersonal relationships come under the scanner. She becomes a topic of discussion everywhere, be it her workplace or her locality. The genuineness of her complaint is openly questioned and malicious intent is also sometimes assigned to her complaint. The gloomy creature has to furnish sufficient proof in order to establish her charges. She has to fight to the pressure from her colleagues, seniors and also the society. A common accusation against a victim of sexual harassment is that she consented to the alleged acts. If the woman finds her recruitment, promotion and reputation in peril, there are chances that she would yield to such demands or favours.

In Vishaka v. State of Rajasthan, the Supreme Court laid down guidelines to protect women at workplace in absence of a domestic legislation. It said that the guidelines would occupy the field till a suitable legislation does not come into force. It took sixteen long years for the Legislature to frame a legislation addressing this ever sweltering issue. After the enactment of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 the question of application of ‘Vishaka’ principles have been thrown open. The Act came into effect from December 9, 2013. Curiously, the Act nowhere referred to the Vishaka judgment. In future, a person charged with sexual harassment is likely to demand that he should be tried only under the SHW Act and not under the earlier rules or directions by courts.

Even though sexual offenses against women at workplace begin to rise, most of the cases go unreported. Not many women have had the courage to come to the fore and let the world know about the injustice perpetrated against them. Very few have shown the courage to bring their offenders to book. Some feared social stigma while others had apprehensions regarding their careers. Few women dare to stake their reputation and career to fight for their rights. They knew that their offenders were not someone from the general population but those sitting in high-profile offices and holding renowned posts. So when the question would arise as to who is speaking the truth certainly more credibility would be accorded to the offenders. It’s not wrong that some charges of sexual harassment do prove to be false but they are very few in number. It is the duty of the Judiciary in every country that when such complaints of sexual offenses come to the limelight, they are not put behind the smokescreen. Every attempt should be made to deliver justice so that the number of victims approaching the court for the protection of their dignity shoots up.

The rates of conviction in sexual harassment cases have dipped from 40.8% (in 2011) to 24.2% (2012). Bhanwari Devi’s gangrape case in the backdrop of which Visakha judgment came is still pending. The perpetrators of the crime are yet to be punished asthe case drags on in the Rajasthan High Court. The low rate of conviction is one of the factors which deter the victims from approaching the courts.
Addressing a problem is not a solution to it. Even though this problem has been addressed long ago and several amendments in law already made, little ground work has been done. The effectiveness of law lies not in the number of provisions and the penalty it provides but in the endeavours it makes to bring everyone under the umbrella of justice. The panacea for dealing with sexual offenses at workplace has to be looked for otherwise women would continue to suffer under the banner of women empowerment forever.

1. The charge of sexual harassment should be sufficient to incur the wrath of the legislation and the person concerned should be suspended at the first instance.

2. Exemplary compensation should be awarded to the victim. The motive behind this compensation cannot be restoring the dignity of the victim because injury to one’s dignity and self-respect can never be reparated. However, such kind of compensation could act as deterrence for others.

3. Every workplace should have CCTV installed at all the places possible which would help in backing the claims of the victims to a great extent.

4. The Acts in force for dealing with sexual harassment at workplace should be given an extended application so that if a senior or a colleague asks for sexual favors outside the precincts of workplace, he would be liable under the law.

5. For women lawyers, the ‘workplace’ is often the courts. The lawyers practicing in the courts are not the employees of the ‘judges’ and hence the definition of employee and workplace should be given a broader meaning when it comes to women lawyers.

6. When the accused is a senior or a retired Judge of a court, it should be ensured that the person is not able to hold any honorary posts in future. At the same time, there should be a provision in the concerned Act that if a person is a judge or a magistrate complaint against him should be lodged only in a court higher in hierarchy. This would prevent bias against the victim and stop the accused from making unfair use of the position he holds.

7. When The Supreme Court notice to the Centre and justice Swatanter Kumar on law intern's petition in the alleged sexual harassment case it admitted that there is no mechanism to handle sexual harassment cases against judges. Judges can be penalised only through the process of impeachment as mentioned under the Constitution. This is however rare process in India. A proper mechanism should be incorporated in the relevant provisions so that proportional punishment can be meted out to the judges.

Women empowerment cannot occur through slogans and be restricted to files. Women can be empowered in the real sense of the term only when they feel that the power to protect themselves has been given in their hands.
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[i]Available at < http://allpoetry.com/poem/11292138-Violated-by-StephaneThePoet>
[ii] Article 141, The Constitution of India
[iii] Apex Court needs to get cracking, The Asian Age, January 14, 2014, available at <www.asianage.com/editorial/apex-court-needs-get-cracking-070>
[iv] Sexual harassment allegations against a judge is bad news, Hindustan Times November 13, 2013, available at <http://www.hindustantimes.com/comment/editorials/sexual-harassment-allegations-against-a-judge-is-bad news/article1-1150840.aspx>
[v] Yet another sexual harassment charge hits SC judge, January 10, 2014, available at <www.dnaindia.com/india/report/yet/another/sexual-harassment-charge-hits-sc-judge-1948833>
[vi] Venkatesan, J;  Singh, Shiv Sahay , Ganguly yields to pressure, quits, January 6, 2014, available at  <www.thehindu.com/news/national/ganguly-yield-to-pressure-quits/article5544913.ece>
[vii] Amend sexual harassment laws, Taipei Times, June 19, 2010, available at <www.taipeitimes.com/news/editorials/archives/2010/06/19/2003475845>
[viii] Section 2(n), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
[ix] Sundar, Mythili, Why women remain silent, November 26, 2013, available at < http://www.thehindu.com/todays-paper/tp-opinion/why-women-remain-silent/article5391784.ece>
[x] Ibid.
[xi] AIR 1997 SC 3011
[xii] Chandru, K, A law that raises more questions than answers, The Hindu, January 25, 2013, available at < http://www.thehindu.com/opinion/op-ed/a-law-that-raises-more-questions-than-it-answers/article5614945.ece>
[xiii] Ibid.
[xiv] Available at <http://timesofindia.indiatimes.com/city/delhi/Conviction-rate-fell-from-41-to-24-in-12-years/articleshow/22473030.cms?referral=PM>
[xv] http://www.hindu.com/thehindu/thscrip/print.pl?file=20130405300611200.htm&date=fl3006/&prd=fline&
[xvi] Kothari, Jayna, Sexual Harassment in the Indian Legal Profession, December 3, 2013, available at <ohrh.law.ox.ac.uk/?p=3526>
[xvii] Available at <http://timesofindia.indiatimes.com/india/No-mechanism-to-handle-sexual-harassment-cases-against-judges-SC/articleshow/28826756.cms>

The  author can be reached at: shreyasingh@legalserviceindia.com

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